Case that could drag HK out of dark ages on sex change

Legal action by a transgender woman has shone a light on a little-documented social group in Hong Kong, and the hurdles to them living normal lives

10th August 2010 06:51

Alessia Valenza

Deep-rooted fears and a rigid definition of what makes a man a man and a woman a woman are among the reasons Hong Kong lags behind many Asian countries when it comes to recognising transgender marriage, according to a leading academic.

While the city prohibits marriage by someone who has acquired a new gender, the practice is legal on the mainland, across the region and in many other countries.

Dr Sam Winter of the University of Hong Kong, who has studied transgender development for the past 11 years, says the city’s position throws up a series of contradictions.

He believes a landmark case brought by transgender woman "W" against the Registrar for Marriages which begins in the High Court tomorrow could have a lasting effect on Hong Kong’s transgender community – the size of which is difficult to measure due to the stigma that is attached to it.

"The first contradiction is that the only legal marriage open to W and other transgender women is marriage to another woman. And of course two men, where a transgender man has married a man. And yet the government says it will not allow or recognise same-sex marriage.

"Number two is that one arm of government, recognising the medical necessity of sex reassignment surgery for transgender people in distress about their anatomies, facilitates medical transition.

"Another branch refuses the legal transition that would enable them to lead their lives in accordance with that new anatomy.

"This leaves them in a cruel existential limbo that only adds to the barriers already preventing them from leading lives of dignity, in which they can achieve respect and enjoy equality of opportunity."

According to a paper published in the Hong Kong Law Journal in 2004, the first documented case of a patient undergoing sex reassignment surgery was in 1981.

In 1986, a specialist gender-identity team was set up in Queen Mary Hospital to support and treat people. According to the Hospital Authority, between 2000 and 2009, 29 people have undergone sex reassignment surgery, 22 of them from male to female.

"If the patient who has undergone assessment opts for the operation in the public sector, the attending doctor will arrange for the operation to be conducted at Ruttonjee and Tang Shiu Kin Hospitals," an authority spokesman said.

Sex reassignment surgery specialist Dr Albert Yuen Wai-cheung is the chief of service of the department of surgery at the two hospitals.

Gauging the actual size of the city’s transgender population – which not only includes those who have had surgery but those who live their daily lives with an acquired gender – is impossible, partly because of the fact many people chose to have private surgery carried out abroad, for example in Thailand, and because of the stigma of "coming out".

Winter believes a lack of understanding at an official level in some sections of the government has led to a reluctance to accept transgender marriage in Hong Kong.

"It’s ignorance. Ignorance about the nature of what makes one male or female. This leads to fear, fear that these are really men and that we will end up with same-sex marriage," he said.

"As a Hong Kong resident of 26 years, it saddens me how much the government is willing to spend backing sad, prejudiced and anachronistic positions on issues of sexuality and gender.

"I think things have moved on in Asia (and indeed the rest of the world). In the past several years, several countries in Asia have recognised the legal gender status of transgender people – at least those who, like W, have undergone genital surgery.

"The present policy in Hong Kong, if continued, will undermine any claim we can make for our being a progressive and liberal society concerned with the rights of all to a life of dignity, respect and equality," he added.

Changing times

1981: First documented case of gender dysphoria in which a patient undergoes gender reassignment surgery in Hong Kong.

1986: A specialist gender identity team is established within the sex clinic of the psychiatric unit at Queen Mary Hospital in Pok Fu Lam.

2000 to 2009: Public hospitals carry out sex reassignment surgery on 29 patients; 22 are male to female.

January 1994 to June 2002: 27 applications are received from transsexuals wishing to amend the details on their Hong Kong identity cards. All were approved.

Post-operative transsexuals who are required to serve a prison term are accommodated in a jail or ward corresponding to their chosen gender.

What happens elsewhere

Most Asian countries allow or have no rules to stop a transgendered person marrying in the acquired gender or have erected no legal barrier; an exception is the Philippines, where a transgender woman was barred from changing her birth certificate.

Transgendered individuals are also permitted to marry in their new gender in: Argentina, Australia, Brazil, Canada, Israel, New Zealand, South Africa, Turkey, Uruguay and most states in the United States.